Monday, December 13, 2010

Jamelle Bouie has been following judicial confirmations, and he has an excellent post up today criticizing the possible deal Harry Reid has been negotiating with the Republicans over the remaining judges. With good reason: the deal reportedly would allow confirmation of some -- but not all -- of the nominees who sailed through the Judiciary Committee with no opposition at all, while leaving the rest of the them to rot, along with other nominees who had bipartisan (but not unanimous) support, not to mention the handful of actually controversial nominees.

Bouie notes:

Of course, if there's anyone to blame, it's Reid for his inaction and Obama for his unconcern with the judicial nomination process. At any point during the last two years, Reid could have forced a showdown with Republicans over secret holds and their obstruction of judicial confirmations. What's more, Obama could have been much more diligent about making nominations to fill the large and growing number of vacancies on the lower courts. As it stands, Obama will have to sacrifice a handful of eminently qualified nominees to get the GOP's half loaf.

Exactly right.

It may be the case that as of right now, the deal Reid is negotiating is the best he can get -- although if he's not at least threatening to hold the Senate in up to the last moment, then he's not maximizing his leverage.

Over the course of the last two years, however, it's hard to exaggerate just how thoroughly the Democrats have botched this one. Yes, Republican across-the-board obstruction was basically unprecedented. But it wasn't unanimous; both Supreme Court nominees received Republican votes, and in fact it's fairly likely the Democrats had 60 votes for even the most controversial nominees throughout the 111th Congress -- including now, with only 58 Democrats.

This really needs to be broken down in more detail. The handful of truly controversial nominees, including for example Goodwin Liu, would have in fact chewed up quite a bit of Senate floor time; it's likely that Republicans would have, for example, insisted on using post-cloture debate time. And to be fair to the Democrats, they can argue that they did make good use of floor time over the last two years. Still, anyone who has watched the Senate has noticed a lot of days with little or no business that presumably could have been devoted to one or more of these nominees.

The same case is even stronger for those nominees who drew some conservative opposition, but also had a fair amount of Republican support. It's hard to say how much floor time those nominations would have used, but it might not have been much at all.

Then there are the non-controversial nominees, those who sailed through the Judiciary Committee unopposed only to be slowed by a hold. On those, it seems highly likely that a floor confrontation would have yielded rapid confirmation with hardly any floor time consumed; no one is going to go all Bernie Sanders over some obscure District Court nominee who is about to be confirmed 99-1. In these cases, assuming the reason for inaction was GOP holds, I continue to believe that Reid would have done little or no harm to Senate norms by insisting on wrapping up the hold rapidly and, if necessary, moving the nomination to the floor and using a quick cloture vote to get it done -- because the real violation of Senate practice here were the substance-free holds.

And, of course, there have also been quite a few judicial vacancies for which the administration never bothered to send up a nominee at all.

All in all, and excepting the two Supreme Court nominations, both the White House and the Democrats in the Senate have simply not placed any kind of priority on filling the bench. That's encouraged Republicans to use low-cost methods to block those nominations that have been ready for final confirmation, and Republicans, no fools they, have taken full advantage.

It's still probably not too late for some action. A serious commitment to use every last minute available could probably get at least all -- not most, but all -- of the non-controversial nominees confirmed. It's a little hard to tell how much else is possible at this point (a lot depends on whether floor time is needed for other priorities), but as I've said before, leaving anything that could get done on the table would, indeed, be a real betrayal of the Democrats who worked hard to get Barack Obama and the 111th Senate elected.